Lohnes v. ASTRON COMPUTER PRODUCTS

[1152]

Opinion

RYLAARSDAM, Acting P. J.

Intervener Crum & Forster appeals from a trial court’s order granting a motion to strike its complaint in intervention filed in an action against defendants Astron Computer Products and John Lee. Intervener contends the court abused its discretion. We agree and remand for further proceedings.

Facts

Plaintiff Mary Ellen Lohnes sued defendants for damages she sustained in an auto accident, which occurred almost a year earlier. Defendants answered, discovery commenced, and the court set a trial date. About two and one-half months before trial, intervener, plaintiff’s employer’s workers’ compensation carrier, filed a complaint in intervention seeking indemnification. Shortly thereafter, plaintiff voluntarily dismissed the underlying complaint. Defendants moved to strike the complaint in intervention because intervener failed to seek leave of the court before filing its complaint as provided by Code of Civil Procedure section 387. In opposition, intervener asserted that the accepted practice in Orange County did not require a petition and order granting leave before filing a complaint in intervention, and the clerk’s office advised parties as such. Accordingly, intervener argued it had complied with the accepted practice and met the statutory requirement. Finding the intervention invalid, the court stated, “[It] was not persuaded by the courtroom assistant’s or the court clerk’s advice, the secretary who had never sought leave before, ... or the California Workers[’] Damages Practice Guide as to Orange County rules . . . .” The court struck the complaint in intervention without leave to amend.

Thereafter, intervener moved for reconsideration. At the hearing, the trial court acknowledged the long accepted practice to deviate from written policy and asserted, “It’s not fair to kick somebody out of court, who legitimately called up, found out what the policy was, or found out that basically everybody is saying there’s no reason to do that.” It granted the motion for reconsideration and permitted intervener to seek leave, but refused to vacate the order striking the complaint. Further, the court noted that the written policy requiring an order for leave of court had been reinstated.

Discussion